Case law for policy making: an overview of ECtHR principles when countering disinformation

Abstract

In the last few years, different EU and national authorities have been developing policies aimed at tackling the phenomena of disinformation, misinformation and manipulation online. Among these policies, we find the 2018 Code of Practice on Disinformation issued by the European Commission, a self-regulatory tool signed by a number of online players (e.g. online platforms, relevant advertising groups). The Preamble to the Code mentions that all the measures envisaged should apply within the framework of ‘the case law of the European Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECtHR) on the proportionality of measures designed to limit access to and circulation of harmful content’. The assessment shows that lessons can be drawn from the ECtHR approach to harmful or false speech, allowing governments to create or develop the existing policies from an advanced point of reasoning on the speech and expression dynamics in a democratic society, beginning on a case-by-case evaluation.